R v S

The present application

1. The present application is to be determined afresh. It is not an appeal from, or a review of, the decision of Garling J: R v Kugor [2015] NSWCCA 14 at [4].

The alleged March offending

1. At about 12:30am on 2 March 2016, B was leaving her partner's premises in South Grafton. As she was driving away, the respondent turned into the same street. B continued on her way home. When she was about two blocks from her home, she noticed the respondent "tailgating" her vehicle. She slowed to turn in to her driveway, at which time the respondent stopped behind her and threw a concrete paver towards her, hitting the rear of her vehicle and causing several large scratches. B exited her vehicle and observed the respondent perform a U-turn before driving away. As she did so, the respondent yelled abuse at B.
2. On Friday 11 March 2016, B and her partner were driving along Bent Street, South Grafton, in the direction of the Grafton Bridge. B noticed the respondent driving in the traffic behind her. She watched the respondent weave through traffic until she reached a position beside her (i.e. B's) vehicle. At that point the respondent yelled to B: "Slut, baby killer".
3. B slowed her vehicle down, allowing the respondent to pass her. A short time later B found herself driving behind the respondent. At that point the respondent threw a two litre juice bottle, which was one quarter full, out of her window. The item struck B's car, causing minimal damage.
4. B attended the Grafton Police Station and reported the two incidents. The respondent was arrested on the evening of 12 March 2016 and charged with the alleged March offending. She was released subject to conditions out in [9] above.
5. On 14 March 2016, two days after the respondent's release, B was again in her vehicle at South Grafton. The respondent drove past and yelled at her. B allowed the respondent to pass her, following which B pulled out into the traffic, such that she was then driving behind the respondent in the same lane. At that time, the respondent slowed her vehicle to a speed of between 30 and 40kmh, with B continuing to follow behind her. The respondent entered a roundabout before coming to a complete stop. This caused B to stop immediately behind the respondent. B revved the engine of her vehicle and the respondent drove off, yelling abuse towards B.
6. On the evening of that same day B was present with a number of other persons in premises at South Grafton. The respondent drove her vehicle down the street and slowed down near the front of the residence at which B and her friends were present before yelling out: "I'm going to fucking kill you …".
7. The respondent was arrested by police later that evening and charged with breaching the conditions of her release. She was subsequently released again on the same conditions.

The alleged November offending

1. In November 2015 the respondent was in a relationship with JL (B's son) who resided with his sister (TL) in South Grafton. At that time the respondent was an acquaintance of Anne Kamoto ("Kamoto"). Kamoto had previously been in a relationship with the respondent's cousin.
2. In the early hours of 29 November 2015 Kamoto received a telephone call from TL asking her to come to the premises at South Grafton under the pretence of Kamoto owing TL $20. When Kamoto arrived at the premises she was confronted by the co-offender Cohen Ward ("Ward") and two other males who were unknown to her. Ward yelled at the victim to "get in the shed", following which she was directed in to the garage of the premises and ordered to sit on a chair.
3. At that point Ward produced a black handled steak knife from his pocket. Shortly afterwards the respondent and JL, along with Ward, abused Kamoto who was made to sit on a chair in the centre of the room whilst the respondent and JL remained standing near the door. Kamoto felt that she was not able to leave without being hurt.
4. Ward then grabbed Kamoto by the back of the head and slammed her face in to a table next to where she was sitting, causing Kamoto to feel immediate pain and dizziness. Ward then physically wrestled a handbag from Kamoto and threatened her that he had friends who were on their way to assault her.
5. Subsequently the two unidentified males physically restrained the victim so as to enable Ward to empty her handbag. Further threats were made to Kamoto before she was finally allowed to leave.

The alleged April offending

1. On 22 March 2016 JL was released from custody and sent to a rehabilitation facility in Penrith. On 29 March 2016 he left that facility and travelled back to Grafton where he stayed with his mother in South Grafton. JL was then contacted by the respondent, who requested that they meet. On the evening of 3 April 2016 the respondent collected JL from the South Grafton Bus Depot. In the course of travelling back to her house with JL, the respondent said to him: "I've got a gun under the seat".
2. After they arrived at the respondent's premises, the respondent left. She later returned in the company of the alleged co-offender Wade Sullivan ("Sullivan"), and his girlfriend Taylor Reardon. The group sat in the lounge room of the premises drinking alcohol and smoking cannabis. Sullivan left the premises and returned a short time later in the company of the other alleged co-offender, Sean Duncombe ("Duncombe").
3. JL began to feel ill and he asked the respondent to drive him home. The respondent agreed to do so and she and JL walked out to her vehicle, followed by Sullivan and Duncombe. The respondent got in to the driver's seat of the vehicle, Sullivan got in to the front passenger seat, Duncombe in to the rear near side passenger seat and JL in the rear offside seat.
4. In the course of driving towards South Grafton the respondent, Sullivan and Duncombe became concerned that they were about to be followed by the police. At that point, Duncombe removed a shotgun from underneath his legs and placed it in JL's lap, saying: "It's your gun, it's your gun. Hold on to it so it doesn't go off".
5. In the course of driving, JL asked the respondent to stop as he felt ill. The respondent said to him: "You'll be right".
6. JL then put his head out of the window of the vehicle and vomited down the side of it. When he asked the respondent to take him home she replied: "Yeah soon".
7. Ultimately, the respondent entered a dirk track and drove into the Pine Brush State Forest. At that time Sullivan turned to JL and said: "You know we're gonna tie you up and put a bullet in your knee cap". JL said: "What for? What have I done wrong?" Duncombe replied: "You know what you did. Just tell the truth".
8. The respondent then referred to the death of her daughter saying: "You know we're both gonna be charged for this … If they charge me, they're gonna charge you too. We're gonna do time for this."
9. The vehicle then stopped. The respondent, Sullivan and Duncombe got out, with JL remaining inside. Duncombe then ordered JL to get out of the vehicle. JL refused and remained seated. Duncombe held the shotgun in his right hand and raised it, pointing it directly at the forehead of the JL, with the muzzle only centimetres from his skin. He grabbed hold of the back of JL's neck, forcibly removed him from the vehicle, he pushed him to the front of the car and directed him to remove his t-shirt and hat. At that point JL felt something hard hit him in the back of the head which caused him to fall forward on to his arms. Duncombe and Sullivan then began kicking JL to the head numerous times, with JL attempting to shield his face with his arms. He was subsequently kicked numerous times to forearms. The next thing he remembers is waking up on his back and being kicked in the head by the respondent, Duncombe and Sullivan. Duncombe then hit JL in the face with the butt of the shotgun several times, with all three persons calling JL "a dog" as they assaulted him.
10. A short time later Duncombe raised the shotgun then pointed the muzzle in to the direction of the ground between himself and JL, a distance of approximately three metres. Duncombe discharged one round of the shotgun in that direction. JL felt that he was going to be shot at the time. The respondent and Sullivan were standing next to Duncombe when he fired the shot.
11. The respondent, Duncombe and Sullivan then got back in the vehicle. As they did so, Duncombe, whilst standing next to the front passenger seat, raised the firearm up again and pointed it in JL's direction. He fired it in JL's general direction, although JL was not shot. The respondent, Duncombe and Sullivan then left the area in the respondent's vehicle.
12. On the morning of 4 April police were alerted to the presence of the respondent's vehicle parked in a dangerous position on the roadway. They arranged for the vehicle to be towed to a holding yard, after which it was searched by police. Dried vomit was located on the inside of the rear right side passenger door, consistent with JL's account of vomiting whilst seated in the car. In addition, a shotgun was located in the spare-tyre-well, underneath the flooring the boot of the vehicle. Two discharged cartridges were located in the chamber.
13. Subsequent inquiries established that the respondent, Sullivan and Duncombe were collected by a taxi from South Grafton in the early hours of 4 April. The taxi driver who picked them up reported that the respondent sat in the front seat, was erratic in her behaviour and requested the driver to do laps around roundabouts and drive in different directions rather than take the most direct route to their intended destination.
14. Results of DNA testing of the gun which were Exhibit A on the present application are generally corroborative of JL's account of events.

The respondent's criminal history

1. The respondent has a limited criminal history. She appeared at the Grafton Local Court in April 2016 and was fined in respect of an offence of possessing implements to enter or drive a conveyance.
2. There is a record of an earlier appearance before the Richland Magistrates Court in Queensland on 17 July 2013 in respect of charges of common assault and assault/obstruct a police officer. A fine of $950 was imposed but no conviction was recorded.

The Crown's evidence

1. The Crown called Sandra Tanner, a caseworker at the Department of Family and Community Services ("FACS"), to give evidence at the hearing before the Court. Since 17 December 2015, Ms Tanner has been the caseworker for the respondent's son (NT) who is a little over 2 years of age.
2. Ms Tanner gave evidence that NT had been removed from the respondent's care on 9 December 2015, following the death of the respondent's daughter. In late December 2015, NT was placed into the care of his father (DT). Ms Tanner gave evidence that FACS initially explored the possibility of returning NT to the respondent's care. As part of that process, the respondent was required to submit to clean urine tests three times each week. In the five month period between NT being removed from the respondent's custody and her arrest, the respondent submitted to a total of only three urine tests. Two were positive for the presence of tetrahydrocannabinol (THC), whilst one was positive for both THC and methylamphetamine.
3. Ms Tanner gave evidence that meetings were scheduled between the respondent and FACS caseworkers to discuss NT's ongoing care. The respondent was invited to attend but on two occasions failed to do so.
4. On 14 April 2016 the Children's Court concluded that there was no realistic possibility of restoring NT to the respondent's care. Having reached that conclusion, the court ordered that all aspects of NT's parental care were to be allocated to the Minister for FACS for a period of six months ending 13 October 2016, at which time parental responsibility will be allocated to NT's father (DT), to the exclusion of the respondent, until such time as NT turns 18 years of age.
5. After NT was removed from her care the respondent was offered the opportunity for supervised visits of NT two times per week. Ms Tanner said that although the respondent had visited NT regularly in the latter part of 2015 and the early part of 2016, there were occasions on which she was more than 45 minutes late for those visits. In February 2016, on the basis of information as to the respondent's use of drugs, FACS determined that any visit by the respondent to NT could occur only at a Community Service Centre.
6. Ms Tanner explained that as matters presently stand, the management of FACS had determined that the respondent was to be restricted to monthly supervised visits with NT for no more than 2 hours at a time. She explained that in October of this year, when the parental rights in respect of NT are transferred to DT, it will be a matter for DT to determine what (if any) contact the respondent is to have with NT. Whilst Ms Tanner was not sure of the nature and extent of any present relationship between the respondent and DT, she stated that she was aware that DT was "very hesitant to have contact" with the respondent. When asked why that was, she explained that it stemmed from a "history of conflict", DT apparently having a fear that such conflict could arise again.

The respondent's evidence

1. The respondent filed three affidavits, namely: 1. Andrew Wong (the respondent's solicitor) of 4 August 2016; 2. Andrew Wong of 9 August 2016; and 3. Ralph Skinner (the respondent's father) of 4 August 2016.
2. However, at the hearing, the affidavit of the respondent's father was not read. That is a matter to which we will return.
3. The first of the affidavits of Mr Wong annexed written confirmation by a Mr Gibbs of the respondent's participation in the "Belonging to Family" program at the Mid-north Coast Correctional Centre prior to her release by Garling J. The letter confirmed that the respondent had attended all group sessions, that she had contributed to, and participated in, those sessions "with enthusiasm", and that she had displayed "a genuine awareness of the flow-on impact of offending for families and the community".
4. Mr Wong's further affidavit also annexed an earlier affidavit of the respondent's father of 1 July 2016. The latter affidavit was part of the evidence before Garling J. It confirmed that in the event of the respondents' release, she would reside with her father in premises at South Grafton. The affidavit also confirmed the availability of a surety.
5. A letter from the Inala Indigenous Health Service of 20 April 2016 annexed to Mr Wong's first affidavit stated (inter alia): "Brooke has suffered mental health issues for many years and has been diagnosed with PTSD (raped at aged 12 years), depression with anxiety and a conduct Disorder."
6. The correspondence confirmed that the respondent has been previously treated for anxiety and depression in 2012.
7. Mr Wong's first affidavit also deposed to enquiries made with the District Court Registry at Grafton, which suggested that the respondent's trial would not take place until March 2017 at the earliest.
8. The second of Mr Wong's affidavits annexed a report from Dr Brendan Pitts, a General Practitioner in Grafton. Dr Pitts first saw the respondent on 5 August 2016, and saw her for a second time on 8 August 2016. He stated that he had prepared a mental health plan for her, and made reference to the respondent being referred to a psychologist and being prescribed various forms of medication. The details of the mental health plan were otherwise scant. Dr Pitts diagnosed the respondent as suffering from depression, anxiety, bipolar disorder and addiction to narcotic substances. He expressed a willingness to continue with her care if she remained at liberty.
9. The second of Mr Wong's affidavits annexed a further letter from Mr Gibbs of 5 August 2016, in which Mr Gibbs confirmed that since the respondent's release he had liaised with Dr Pitts, and had attended upon the respondent at her home. He expressed the view that as a consequence of her participation in the "Belonging to Family" program, the respondent had displayed "a genuine awareness of the flow-on impact of offending to the families/communities and (saw) the need to demonstrate that she (was) now gaining direction within her life".
10. Additional correspondence annexed to the second affidavit of Mr Wong confirmed that the respondent is registered to attend a one day work shop on 16 August 2016, and a two day work shop on 2 and 9 September 2016, directed towards controlling aggression and remaining calm under pressure.

Submissions of the Crown

1. The Crown submitted that in respect of all of the alleged offending, the respondent faced a strong Crown case, particularly in circumstances where the three victims had positively identified her. The Crown also pointed, in respect of the alleged April offending, to the recovery, and the results of the DNA tests, of the shotgun, and other evidence found on examination of the respondent's vehicle which corroborated JL's account of what occurred. The Crown also submitted the fact that the respondent inevitability faces a fulltime custodial sentence if convicted, and pointed to the significant prescribed maximum penalties for the charges brought against her.
2. The Crown pointed to the fact that pursuant to s. 16A of the Act, the respondent is required to show cause why her detention is not justified. The Crown submitted that none of the matters relied upon by the respondent, whether considered singularly or in combination, discharged that onus. The Crown further submitted that even if this court came to the view that cause had been shown, the respondent's release carried with it unacceptable risks of: 1. non-appearance; 2. the commission of a serious offence; and 3. the endangering of the safety of victims, individuals or the community.
3. It was submitted that none of these risks were capable of being properly addressed by the imposition of any condition(s).
4. The Crown emphasised the fact that the alleged April offending took place at a time when the respondent was on conditional liberty. The Crown highlighted the fact that the respondent breached the conditions of her release only two days after being arrested for the alleged March offending, and that after a re-determination of bail following that breach, the alleged April offending occurred, which was even more serious. The Crown submitted that these circumstances demonstrated the respondent's "blatant disregard for bail conditions specifically concerning the protection of victims". It was submitted that in these circumstances the Court could have no confidence that even the most stringent bail conditions would satisfactorily meet the risk of the commission of further offences. It was submitted that in all of these circumstances, this court should conclude that both victims and witnesses would remain in continued danger if the respondent were released into the community.

Submissions of the respondent

1. Counsel for the respondent emphasised that it was not necessary, in order to show cause, that special or unusual circumstances be demonstrated. Counsel also emphasised the need for each case to be determined according to its own facts and circumstances.
2. At the heart of the submissions advanced on behalf of the respondent was the proposition that the respondent was a "vulnerable young aboriginal woman, suffering from mental health issues, who is dealing with the grief of the recent death of her daughter and the removal of her son from her care". In more specific terms, counsel for the respondent advanced the following factors which were said to demonstrate that the respondent's detention was not justified: 1. her limited criminal history; 2. the fact that the recent period between 7 April 2016 and on 19 July 2016 represented her first time custody; 3. the evidence of Mr Gibbs, and his ongoing support; 4. the respondent's limited access to her son whilst in custody; 5. the strong community and family support provided to her since her release; 6. the professional support now available to her which, it was submitted, was unlikely to be available to the same degree if she remained in custody; and 7. the likely period that the respondent would spend in custody awaiting trial, which was said to be some seven months.
3. Counsel further submitted that in the event that the Court concluded that cause was shown, all of these factors remained relevant to the assessment of any risk(s).
4. Counsel for the respondent also emphasised the need to have regard to the presumption of innocence. It was submitted that any concern that the court might have that the respondent would fail to appear at any proceedings would be limited, having regard to her lack of means to flee the jurisdiction, and her strong community ties. It was submitted that all of the factors set out above were such as to mitigate any bail concerns.

CONSIDERATION

1. It is well settled that a person in the position of the respondent may rely upon a series of circumstances to show cause why her detention is not justified. However the Court is not persuaded that the respondent has shown cause in the present case. This is so for a number of reasons.
2. Firstly, the entirety of the alleged offending is obviously serious. In particular, the alleged November offending and the alleged April offending involved gratuitous violence, perpetrated on innocent victims. Whilst it is, as counsel for the respondent pointed out, obviously necessary to have regard to the presumption of innocence, the Crown case against the respondent in respect of all of the alleged offending appears strong. The respondent has been positively identified by each alleged victim. In the case of the alleged April offending there is independent corroboration of the victim's account. That alleged offending involved the use of a firearm. A substantial custodial penalty will be imposed in the event that the respondent is convicted of the offences with which she is charged.
3. Secondly, it is significant that the respondent was on conditional liberty at the time of both the alleged November offending and the alleged April offending. That necessarily gives rise to considerable concern as to whether the respondent would comply with any bail conditions which might be imposed. What is also significant in this regard is the evidence of Ms Tanner as to the respondent's approach to matters concerning access to her son. In particular, the respondent's apparent attitude towards attending scheduled meetings, and her failure to comply with a request for the provision of a urine sample for analysis, does not give the court any confidence that she would be likely to comply with any bail condition which might be imposed. That of course is to say nothing of the fact that such urine samples as were provided by the respondent revealed the presence of illicit drugs.
4. Thirdly, the absence of any evidence from the respondent's father, with whom she is presently residing pursuant to her current bail conditions, is particularly significant. The Court is left to conclude that the level of support and supervision previously provided to the respondent by her father has decreased considerably since her release.
5. Fourthly, and whilst it is obviously the case that if returned to custody the respondent is likely to have little or no access to NT, the evidence of Ms Tanner establishes that as matters presently stand, such access is limited to two hours per month in any event. Moreover, as we have pointed out, Ms Tanner's evidence establishes that the applicant has been less than diligent in complying with requirements which would ensure that she was in the best possible position to have access to NT. Further, there appears to be some likelihood that when the care of NT reverts to his father in October of this year, the respondent's access to NT will be further limited.
6. Fifthly, and even though the evidence before the Court is limited, it is apparent that the respondent has a number of issues concerning her mental health. Two matters in particular arise in that regard. Firstly, in circumstances where the applicant was released shortly after the orders made by Garling J on 19 July 2016, it was not until 5 August 2016, some 2½ weeks later, that she first saw Dr Pitts. In the absence of an explanation for it, that delay tends to indicate that the respondent, even with the support from her father which was available at that time, was less than diligent in addressing her mental health issues. Secondly, the report of Dr Pitts is scant in terms of any detail. Whilst Dr Pitts makes reference to preparing a "mental health plan" for the respondent, there is no evidence before the Court which sets out, in any precise terms, exactly what that plan entails, other than a passing reference to a referral to a psychologist and the prescription of what appears to include anti-depressant medication.
7. Counsel for the respondent submitted that there was nothing within the Act which require a person in the position of the respondent to set out, in any greater detail, any mental health plan which might be prepared for her. That is strictly correct. However, in determining whether cause has been shown (and if so, whether there are any unacceptable risks) in a case where the individual concerned has identified mental health issues, it is obviously relevant for the Court to enquire as to whether those issues will be properly addressed in the event that the individual is released. On the evidence, this Court is not able to be satisfied that the respondent is serious about addressing these issues, or that they are being given the appropriate degree of attention.
8. In all of these circumstances, the observations in Director of Public Prosecutions (NSW) v Brooks [2015] NSWCCA 190 at [22] are apt: "… there is nothing particularly special or unusual in what the respondent has put before the court. Age, lack of criminal antecedents, ties to the community and strong family support do not amount to showing cause. This is particularly so when one has regard to the seriousness of the offence with which the respondent has been charged and the apparent strength of the Crown case."
9. For these reasons the Court made the following orders: 1. the application is granted; 2. bail is refused; and 3. the respondent is to be returned to custody.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 04 October 2016